Florida/Georgia Personal Injury & Workers Compensation

...expensive than is paying with cash. What may be shocking to learn is that Florida makes it a second-degree misdemeanor for “[a] sellor or lessor in a sales or lease transaction” to “impose a surcharge on the buyer or lessee for electing to use a credit card,” Fla. Stat. § 501.0117(1)–(2), while the State expressly allows “the offering of a discount for the purpose of inducing payment by cash.” Id. § 501.0117(1)....

...The Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia Circuit, sitting by designation. 1 Violators of Florida’s no-surcharge law face the possibility of a $500 fine and sixty days’ imprisonment. Fla. Stat. §§ 501.0117, 775.082(4)(b), 775.083(1)(e). 2  Case: 14-14426 Date Filed: 11/04/2015 Page: 3 of 46 The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference....

...ker, and the message being expressed. Because the at-best plausible justifications on which the no-surcharge law rest provide no firm anchor, the law crumbles under any level of heightened First Amendment scrutiny. We, therefore, must strike down § 501.0117 as an unconstitutional abridgment of free speech. I. In 2014, four small businesses filed suit in the Middle District of Florida after receiving cease-and-desist letters from the Florida...

...not involving the use of a credit card, if the discount is offered to all prospective customers. (2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, … Fla. Stat. § 501.0117 (emphasis added).5 As a second-degree misdemeanor, the no-surcharge law exposes violators to the possibility of sixty days’ imprisonment and a $500 fine. See id. §§ 501.0117, 775.082(4)(b), 775.083(1)(e). 5 In its entirety, Florida’s no-surcharge law provides: (1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a cr...

...That is, it would prohibit merchants from charging different prices to different customers depending on whether payment is made in cash 6 or by credit card. Yet, by the statute’s own terms, that cannot be. Merchants are expressly allowed to offer a “discount for the purpose of inducing payment by cash.” Fla. Stat. § 501.0117(1)....

...the discount is offered to all prospective customers. (2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Fla. Stat. § 501.0117. 6 Though the statute also allows for discounts if customers pay with cash equivalents such as personal checks, we refer to these collectively as cash for the sake of convenience and clarity....

...Updegraff, 147 F.3d 1344, 1351 (11th Cir. 1998) (“[W]e avoid statutory constructions that render provisions meaningless”). Perhaps the statute instead bans the selective raising of previously announced prices “imposed at the time of a sale” for credit-card users. Fla. Stat. § 501.0117(1)....

...Under this strained reading, even the cheeky merchant who hung a sign on the till that read “You, the buyer, will have a surcharge imposed on the price of your purchase if you elect to use a credit card in lieu of payment by cash”—complete with citation to Fla. Stat. § 501.0117—would get off scot-free. Our conclusion rejecting this alternative construction is bolstered by the Attorney General’s own reading of the no-surcharge law....

...Because the statute defines surcharge as “any additional amount imposed at the time of a sale,” the dissent argues that this temporal limitation provides a reasonable, constitutionally viable alternative of Florida’s no-surcharge law as a regulation of conduct, not speech. Fla. Stat. § 501.0117(1)....

...Read in full, the statutory definition provides: “A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment.” § 501.0117(1) (emphasis added). As we understand the dissent’s position, the merchant who hangs a sign on the register announcing a generally applicable surcharge for all credit-card sales need not fear prosecution under § 501.0117 because customers, armed with notice prior to the time of sale, would not fall prey to commercial “ambush.” Similarly immune from liability, however, would be the deceitful huckster who kept his mouth shut and added $5 to a customer�...

...cash discounts, while credit-card surcharges are verboten. In order to violate the statute, a defendant must communicate the price difference to a customer and that communication must denote the relevant price difference as a credit-card surcharge. Calling § 501.0117 a “no-surcharge law,” then, is something of a misnomer....

...y communication from the seller, does the customer incur a $2 surcharge or does he than for naked pecuniary gain—a dubious proposition, at best. Under the dissent’s preferred anti-bait-and-switch construction, then, the only scenario in which § 501.0117 applies would be where a merchant gave no prior warning about an additional charge whatsoever and somehow expressed that the charge was “for the privilege of using a credit card” at the time of a sale. It strains credulity that it was this vanishingly small, perhaps entirely fanciful, set of circumstances upon which the Florida Legislature fixed its attention in enacting the broadly sounding § 501.0117....

...nc with the dissent’s preferred reading, though not controlling, strongly suggests the likely confusion about the statute’s meaning and enforcement that would follow from adopting an anti- bait-and-switch construction. Second, to the extent that § 501.0117 criminalizes only conduct that is already punishable civilly under the Florida Deceptive and Unfair Trade Practices Act, that should raise more First Amendment and Due Process concerns, not fewer....

...On its face, the law appears to regulate businesses engaged in dual-pricing, applies to “[a] sellor or lessor in a sales or lease transaction,” turns on the method of payment used, and defines the offense as occurring “at the time of a sale or lease transaction.” Fla. Stat. § 501.0117....

...es only to how a merchant may frame the price difference between cash and credit-card payments. See Reed, 576 combination of Pullman abstention and a narrow reading of the relevant statutory text and legislative history, both of which differ from § 501.0117’s....

...regulatory needs of only the highest order. By holding out discounts as more equal than surcharges, Florida’s no-surcharge law overreaches to police speech well beyond the State’s constitutionally prescribed bailiwick. For that reason, we conclude that § 501.0117 is an unconstitutional abridgment of free speech. 29  Case: 14-14426 Date Filed: 11/04/2015 Page: 30 of 46 V. Accordingly, we REVER...

... Case: 14-14426 Date Filed: 11/04/2015 Page: 31 of 46 ED CARNES, Chief Judge, dissenting: The statute at issue in this case bars surcharges for using credit cards but permits discounts for using other methods of payment. See Fla. Stat. § 501.0117(1)....

...46 $100.00 and then charged the customer an unposted $103.00 at the register because the customer used his credit card. The “additional amount” of $3.00 is a “surcharge” because it was “imposed at the time of a sale.” See Fla. Stat. § 501.0117(1)....

...are — by its own admission — tautological definitions of “surcharge” and “discount,” defining a surcharge as “simply a ‘negative’ discount” and a discount as “a ‘negative’ surcharge.” Maj. Op. at 2. The result is a rewritten Florida Statute § 501.0117 with a great big First Amendment bullseye on it....

...34  Case: 14-14426 Date Filed: 11/04/2015 Page: 35 of 46 II. We should use the statutory definition of “surcharge” to save Florida Statute § 501.0117 from a fatal constitutional flaw....

...It also admits that the statute would be constitutional if read as “a prohibition on bait-and-switch schemes” that “bans the selective raising of previously announced prices at the ‘time of a sale’ for credit-card users.” Id. at 13 (quoting Fla. Stat. § 501.0117(1))....

...using the statutory definition is its belief that the Florida Attorney General has disavowed this reading of the statute in her brief, at oral argument, and in the 2 The majority opinion’s position would make sense only if, as it believes, Florida Statute § 501.0117(1) bans all surcharges. See Maj. Op. at 16. But the statute does not do that. It does not ban them all because it limits the definition of the statutory term “surcharge” to additional amounts “imposed at the time of a sale or lease transaction.” Fla. Stat. § 501.0117(1)....

...lidly applied. See United States v. Stevens, 559 U.S. 460, 472–73, 130 S. Ct. 1577, 1587 (2010) (quotation marks omitted). That the Attorney General’s cease and desist letters set out some facts that she believes would violate Florida Statute § 501.0117 does not exclude the possibility that the statute could be validly applied to other facts....

...e statute “cover[ing] only conduct already covered by the Florida Deceptive and Unfair Trade Practices Act” (FDUTPA). Maj. Op. at 14 (citing Fla. Stat. §§ 501.201–213). In the majority’s view, it is better to strike down Florida Statute § 501.0117 in its entirety than to read it “to function solely as a backstop” to the FDUTPA....

...t is better to strike down a statute than to read it in a manner that creates some overlap with another statute. Not only that, but the majority opinion is simply wrong about the statutory definition interpretation reducing Florida Statute § 501.0117 to a mere “backstop” for the FDUTPA. It is wrong, among other reasons, because one statute is criminal while the other is civil. Florida Statute § 501.0117 provides a criminal penalty for violation of its provisions and has no civil remedy. See Fla. Stat. § 501.0117(2). By contrast, the FDUTPA provides various civil penalties and a private cause of action as remedies and has no criminal penalties....

...There is nothing wrong with the Florida legislature deciding that the civil penalties in the FDUTPA were not enough to address the problem of credit card surcharges imposed at the time of sale or lease and to fill in that gap by enacting Florida Statute § 501.0117. We must adopt a saving interpretation so long as it is “fairly possible,” even if it is not “the most natural” reading of the statutory language....

...intiffs’ two facial challenges relatively easy. Here’s why. 42  Case: 14-14426 Date Filed: 11/04/2015 Page: 43 of 46 The plaintiffs’ first claim is that Florida Statute § 501.0117 violates their right to free speech....

...onduct. See Stevens, 559 U.S. at 472, 130 S. Ct. at 1587 (quotation marks omitted). As I explained earlier, by limiting the definition of “surcharge” to an “additional amount imposed at the time of a sale or lease transaction,” Fla. Stat. § 501.0117(1), the statute prohibits adding an additional amount — at the time of the sale — to the sale price....

...position of a credit-card surcharge…with the words that speakers of English have chosen to describe that pricing scheme.” Id. at *9. Under § 518, merchants cannot charge customers additional fees for using credit cards. Under Florida Statute § 501.0117, merchants cannot charge customers additional fees “at the time of sale” for using credit cards....

...The law does not define “surcharge,” so the Second Circuit gave that word its ordinary meaning. See 2015 WL 5692296, at *6. 44  Case: 14-14426 Date Filed: 11/04/2015 Page: 45 of 46 The plaintiffs’ second claim is that Florida Statute § 501.0117 is void for vagueness....

...State Superintendent of Educ., 746 F.3d 1135, 1138 (11th Cir. 2014). The statute’s narrow definition of “surcharge” eliminates both vagueness concerns. The key vagueness-busting words are “at the time of a sale or lease transaction.” Fla. Stat. § 501.0117....

...BACKGROUND Plaintiff has brought six claims against Defendant for unjust enrichment, money had and received, and violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). See DE 1. Counts I through III are premised on Defendant’s alleged violations of Fla. Stat. § 501.0117 (the “Surcharge Statute”), and Counts TV through VI are premised on Defendant’s alleged violations of Fla....

Statute § 501.0117 (count one); money had and received for a violation of Florida Statute § 501.0117 (count

Dear Mr. Kohl: You have requested my opinion on substantially the following question: Does section 501.0117 , Florida Statutes, prohibit a municipal utility from imposing a surcharge for a customer's use of a credit card to pay a utility bill? Section 501.0117 , Florida Statutes, provides: "A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card....

...This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, if the discount is offered to all prospective customers." A violation of this section is a misdemeanor of the second degree. 1 Section 501.0117 , Florida Statutes, refers generally to sellers or lessors and does not distinguish between a governmental seller and a private one....

...Statutory provisions written in general language that would make them applicable both to the government and to private parties are subject to a presumptive rule of construction which exempts the government from application of the statute unless it is specifically made subject. 2 Therefore, section 501.0117 , Florida Statutes, does not apply to municipal utilities....

...civil penalties, court-ordered payments, or court costs, or other statutorily prescribed revenues an amount sufficient to pay the service fee charges by the financial institution, . . . or credit card company for such services. . . ." 3 Accordingly, section 501.0117 , Florida Statutes, does not prohibit municipal utilities from imposing a surcharge for credit card payments. It is my opinion that section 215.322 , Florida Statutes, rather than section 501.0117 , Florida Statutes, regulates the acceptance of credit cards by municipalities for payment of the financial obligations set forth in the statute. 1 Section 501.0117 (2), Fla....